Testing the Fair Use Balance

Remember Righthaven? That's the company with the business model of suing bloggers over copyright that ignited one of the more recent fair use controversy debates. A report last month from Fortune about the company asked questions like: "Could clicking a Like button lead to a lawsuit?" and "Are the days of posting stories to Facebook, emailing articles to friends, or printing out pieces numbered?" and suggested that social media could be "maimed". For further context read our previous coverage here and here.

While we even found that to be a bit sensational at the time, words from Copyright Clearance Center Vice President, General Counsel and Secretary Frederic Haber seem to confirm that. He shared some commentary on the subject with WebProNews.

When asked whether he though social media sharing and emailing of articles was in jeopardy, his response was: "In jeopardy from copyright? No, copyright helps make all of that possible. Without copyright, it's much less likely that either the software or the articles would have existed to be shared. Users have always shared materials that they read or experienced and wanted to bring to the notice of their friends and social circles, and copyright has never stopped that; on the other hand, going into the publishing business by distributing other people's creations to strangers with whom you have no connection rather than creating things yourself is another matter."

"Social media sharing between friends or within social circles shouldn't impede publishers' and creators' ability to profit from their content, and neither should wider sharing of focused selections where the person doing the sharing is actually saying something like 'look how great this is!' or 'can you believe that he said this?' Then the person doing the sharing is actually making a contribution to society, even if in only a small way, and that is exactly the kind of thing that fair use protects. Simply making a copy in order to save someone else from having to buy her own is something else."

The definition of fair use often seems a little blurry because of the gray areas (particularly online). When asked how fair use is defined for digital content, Haber said, "Fair use is a remarkable tool developed by federal judges over 170 years to balance the rights of copyright holders with the Constitutional injunction that copyright is intended 'to promote the progress of Science', which necessarily means that users must be able to use copyrighted works in some ways without being deemed infringers."

"In the Copyright Act of 1976, Congress finally enshrined fair use in statute, but did not define it because what is fair use and what is not vary so widely with circumstances," he continued. "Instead, Congress adopted and refined a test that judges had been developing over the years, directing a court to look at all the circumstances surrounding a use and make a judgment as to the appropriate way that a copyright holder's rights and a user's fair use privilege can best be balanced. That's the famous 'four factor' test of Section 107 of the Copyright Act."

"A fair use, then, is defined for digital content exactly as it's defined for all other content. It's a use that benefits society generally but does not unreasonably interfere with a copyright holder's right to exploit and protect its creative output (a right which is itself intended to encourage the creation of more creative output for the ultimate benefit of society). The four factor test is technology-neutral, much as copyright itself is technology-neutral, because it is intended to address the needs and rights of people (and not technologies) in as balanced a fashion as possible."

"The question as to whether a use is a fair use is always whether the use goes beyond that which is reasonable in the circumstances (with the four factors as a guide to doing that analysis) or unreasonably interferes with a copyright holder's rights to, for example, earn the money through selling copies of her work that she needs to earn to make MORE copyrighted works for others to experience and share. With that as the standard, social media sharing or emailing articles between friends shouldn't be at risk."

As for Righthaven's practices, Haber had the following to say: "Righthaven appears to be using the courts to test the fair use balance by responding to some users' use with an allegation that goes beyond that which is reasonable in the circumstances and interferes with the copyright holder's right to benefit from its own creative output. Here, the creator of content (the newspaper) is conveying its right to sue to another party - Righthaven - which appears to be more prepared to test the fair use claim (than a newspaper which would rather focus on its core business), but the issue should be the same. Copyright holders have long sought court protection against infringers, including those who allege fair use but are not in fact making fair use."